HKSAR v. WU ZEHAO

HCCC 181/2019

[2020] HKCFI 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 181 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant, Wu Zehao, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, that is Count 1, and one count of attempting to traffic in a dangerous drug, contrary to the same section and also section 159G of the Crimes Ordinance, Chapter 200, and that is Count 2.

The defendant pleaded guilty to the charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

On 4 July 2018, police officers who were laying ambush saw the defendant enter Room 950 at the Harbour Plaza 8 Degrees on Kowloon City Road and they immediately followed the defendant and entered the room and one police officer shouted, “Police! Freeze!” Four persons were found inside the room. One of the four then brushed two packets off a coffee table and they fell onto the floor. The packets were retrieved and later confirmed to contain the following: one bag containing 23.9 grammes of a solid containing 21 grammes of cocaine, that is bag 1; one bag containing 23.1 grammes of a solid containing no controlled substance, that is bag 2. Another bag which later confirmed to contain 23.1 grammes of a solid containing 21 grammes of cocaine, that is bag 3, was found on a dining table. There were 352 empty transparent resealable bags both on the coffee table and on the floor, and there were also three electronic scales found and they were seized inside the hotel room.

The defendant was arrested. Under caution, the defendant said only that package of ‘coke’ on the dining table, that is bag 3, next to him was his. The other two packets had nothing to do with him. In a subsequent video-recorded interview, the defendant admitted all three packets and the packing paraphernalia were his. He explained that he denied the ownership of bag 1 and bag 2 earlier at the scene as he was scared. He said he had picked them up from a rubbish bin earlier. His job was to separate the dangerous drug into smaller bags and return them to the person who had given him instructions. He was promised a reward between 500 to $1,000 but he had not received it yet.

The street value of the dangerous drug seized was, in powder form, 49,569, and in crack form, 56,547.

The defendant admitted he was in possession of bags 1 and 3 for the purpose of unlawful trafficking, that is Count 1, and believing bag 2 contained dangerous drug, he was in possession of bag 2 for the purpose of unlawful trafficking, that is Count 2.

Background and Mitigation

According to the antecedent statement, the defendant is 21 years of age. He has a clear record, educated up to Form 3 level and was unemployed at the time of the offence, single and before the arrest he was living with his parents.

Mr Kevin Chan, mitigating on behalf of the defendant, submitted that the defendant was educated up to Form 1 level only. The defendant was 19 at the time of the offence. Referring to the letter written by the defendant to this Court in mitigation, Mr Chan submitted the defendant committed this serious crime as he was influenced by bad elements and wanted to make quick money. The defendant was remorseful and promised not to reoffend.

Mr Chan submitted that defendant did provide information of “practical use” to the prosecution so as to be entitled to a further discount. Mr Chan suggested this Court to follow the method adopted by Mr Justice Albert Wong in the case of Mak Chin Kei. This is a High Court case, HCCC 62/2015.

The defendant had written to me, expressing his deep remorse for having committed this present offence. He had come to join his mother from mainland China in 2016 and had to rely on his stepfather to support him. He committed the offence as he wanted to make quick money. He asked to be given a chance.

Consideration and Reasons for the Sentence

For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. I am grateful to counsel for assisting me in calculation of the various methods.

Count 1 first. The total quantity of cocaine in bag 1 and bag 3 are 42 grammes which falls into the category of 10 to 50 grammes with a starting point of 5 to 8 years (see the case of Pedro Nel Rojas adopting the guideline in Lau Tak Ming). Bearing in mind the role played by the defendant in all the circumstances of this case, I am of the view that a starting point of 7 years and 5 months is appropriate.

Now, turning to Count 2. As the defendant mistakenly thought that bag 2 also contained dangerous drug, his mens rea, guilty mind, was the same as the mens rea had the substance in that bag turned out to be a dangerous drug. There was therefore a substantial degree of criminality by reason of such a mens rea. The court needs to accord a reduction of the sentence as a recognition of the fact that the actus reus brought with the trafficking of the substance no harm, and this is the case of HKSAR v Li Oi Yee [2012] 1 HKLRD 276.

The substance involved is 23.1 grammes of a solid. Assuming it had the same purity as those in Count 1, that is roughly 87.9 per cent. The assumed quantity of cocaine amounts to 20.3 grammes which would attract a starting point of 5 years and 9 months. Giving a discount of 50 per cent for a mistaken belief, the sentence is one of 2 years and 10 months. Clearly, if one adopts an individual approach, it will result in absurdity. A combined approach is more appropriate.

A sentence of 2 years 10 months would be equivalent to 2.9 grammes of cocaine. Adding this 2.9 grammes to the 42 grammes would result in 44.9 grammes which would attract a starting point of 7 years and 7 months, and this conversion method was adopted in the case of Mak Ching Kei and I agree such a method would have a fairer result. I will therefore adopt a global starting point of 7 years 7 months for both counts. The defendant is, of course, entitled to a full one-third discount for his plea.

Further Discount

It is common ground that the defendant had given information to the police which was “of practical use” but which did not result in any tangible result such as prosecution of an offender. See the case of HKSAR v Dewi Ilmayanti and Another. Case number is CACC 370/2015 [2019] HKCA 794. I will give the defendant a discount of 40 per cent, that is inclusive of his plea, to take into account his assistance. So the sentence to be imposed is one of 4 years and 6 months.

So the actual sentence for Count 1, trafficking in a dangerous drug, 4 years and 6 months’ imprisonment; Count 2, the attempting to traffic in a dangerous drug, 20 months’ imprisonment; both sentences to run concurrently, making a total of 4 years and 6 months’ imprisonment.